Wednesday, December 25, 2013

On Monday, yet another federal district court decided a challenge by religious non-profits to the Affordable Care Act contraceptive coverage mandate final rules. In Southern Nazarene University v. Sebelius, (WD OK, Dec. 23, 2013), an Oklahoma federal district court granted a preliminary injunction to four Christian universities-- Southern Nazarene, Oklahoma Wesleyan, Oklahoma Baptist, and Mid-America Christian-- which object to providing coverage for contraceptives they regard as abortifacients. The court concluded that the self-certification accommodation provided for religious non-profits in the ACA final rules violates RFRA. The court said in part:

The self certification is, in effect, a permission slip which must be signed by the institution to enable the plan beneficiary to get access, free of charge, from the institution’s insurer or third party administrator, to the products to which the institution objects. If the institution does not sign the permission slip, it is subject to very substantial penalties or other serious consequences. If the institution does sign the permission slip, and only if the institution signs the permission slip, institution’s insurer or third party administrator is obligated to provide the free products and services to the plan beneficiary. It is no answer to assert, as the government does here, that, in self-certifying, the institution is not required to do anything more onerous than signing a piece of paper.... The government’s argument rests on the premise that the simple act of signing a piece of paper, even with knowledge of the consequences that will flow from that signing, cannot be morally (and, in this case, religiously) repugnant – an argument belied by too many tragic historical episodes to be canvassed here.

The court went on to find that the government had not demonstrated a compelling interest in enforcing the mandate, saying in part:

[T]he number of exemptions and exceptions ... is not just a convenient straw man: granting that there may well be a plausible basis for every exception that has been carved out of the mandate, the government’s arguments for a compelling interest in applying the mandate in every particular to these universities ring hollow in light of the collective effect of those exceptions and exemptions.